Challenging a New York Arrest for a Strangulation Crime: Reduction of NY Penal Law 121.12 to NY Penal Law 121.11

Since the New York State legislature created new violations of the Penal Law and criminal code involving Strangulation and Related Crimes, prosecutors throughout New York City and the suburbs have been bringing these cases at very serious clips. It seems that any time there is allegation of one party grabbing, pushing or even touching the neck area of another person, prosecutors charge either the misdemeanor crime of Criminal Obstruction of Breathing or Blood Circulation (New York Penal Law 121.11) or felony Second Degree Strangulation (New York Penal Law 121.12). While Strangulation is a more serious offense than Obstruction of Breathing or Blood Circulation, both crimes (even mere allegations) can destroy the life and career of any professional. Further, because of the nature of the crimes, orders of protections (restraining orders) are routinely granted by criminal court judges that keep families a part. Make no mistake. While these crimes are very real offenses and ones that prosecutors, the NYPD and all branches of law enforcement should take seriously, an accusation or allegation by law enforcement does not mean you actually committed or are guilty of these or any offense.

While this blog entry will generally address the crimes of Obstruction and Strangulation, the entry will briefly analyze a legal decision out of the Appellate Division Fourth Department that addressed a critical distinction between NY PL 121.11 and NY PL 121.12. The reduction of a felony Strangulation in the Second Degree to a misdemeanor Obstruction of Breathing or Blood Circulation can mean the difference between your family visiting you in some upstate correctional facility and you remaining free of any incarceration.

In People v. Andrew R. White, 2012 NY Slip Op 07460, the Court addressed multiple issues as to multiple crimes. In pertinent part, the Appellate Division addressed whether the evidence before the Grand Jury established a violation of Penal Law 121.12 or the evidence before the Grand Jury was only sufficient to establish Penal Law 121.11, the misdemeanor. As recognized by the Court, an accused is guilty of Criminal Obstruction of Breathing or Blood Circulation when that person has an intent to impede normal breathing or blood circulation and applies pressure on the throat or neck of that person. Alternatively, instead of applying pressure to these areas, he or she blocks that person’s nose or mouth. A more serious crime, a person perpetrates Second Degree Strangulation when he commits the lesser crime above “and thereby causes stupor, loss of consciousness for any period of time, or any other physical injury or impairment.”

In White, the lower trial court properly held that the complainant did not lose consciousness, and therefore the Second Degree Strangulation was not supported by the evidence. Further, there was no “physical injury or impairment.” The complainant testified that White squeezed his throat for about three seconds. He further stated that the squeezing was painful. The description in the testimony was not of raw pain, excruciating pain or any other detailed pain. Instead, the complainant’s throat felt “tingly” over the next day and no medical treatment was obtained. Because this “tingly” feeling without more did not rise to the legal level of “substantial pain” and because there was no impairment, the Appellate Court reduced the felony charge to the misdemeanor offense.

Seemingly simple, the analysis of the pain threshold or level is critical. It can make the difference between a felony and misdemeanor depending on other facts and circumstances. In this particular case the evidence supported criminal conduct on the part of the defendant, but not to the degree alleged by prosecutors. Whether a person is falsely accused or law enforcement over charges, ensuring the District Attorney’s Office is held to the standards of the law is important in each and every case.

To learn more about New York violent crimes such as Assault, Burglary, Robbery and Strangulation and Related Offenses, follow the highlighted links throughout this blog entry. Between the Saland Law PC website and this blog, you will find legal analysis of criminal statutes, cases in the news and court decisions that will each give you a better understanding of the law.

Saland Law PC is a New York criminal defense firm. Established by two prosecutors who served together in the Manhattan District Attorney’s Office, the New York criminal lawyers at Saland Law PC represent clients in criminal investigations, arrests, indictments and trials throughout the New York City region.

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